Southwestern Bell Telephone Co. v. Hardy

• Citation: 91 S.W.2d 1075
• Decision Date: 21 February 1936
• Docket Number: No. 2891.,2891.
• Parties: SOUTHWESTERN BELL TELEPHONE CO. v. HARDY.
• Court: Texas Court of Appeals

Page 1075

91 S.W.2d 1075

SOUTHWESTERN BELL TELEPHONE CO. v. HARDY.

No. 2891.

Court of Civil Appeals of Texas. Beaumont.

February 21, 1936.

Rehearing Denied March 11, 1936.

Appeal from District Court, Nacogdoches County; C. E. Brazil, Judge.

Action by J. D. Hardy against the Southwestern Bell Telephone Company. From an adverse judgment, the defendant appeals.

Reversed and remanded.

J. T. Garrison and C. E. Coolidge, both of Houston, for appellant.

Adams & McAlister, of Nacogdoches, for appellee.

WALKER, Chief Justice.

In 1933 Phineas Bell owned a house in the city of Nacogdoches on the west side of Shawnee street. Appellant, Southwestern Bell Telephone Company, maintained one of its trunk lines on the east side of this street and served the Bell house with a telephone connected with this trunk line by a wire that extended across Shawnee street at an elevation of 18 or 19 feet above the street level. About the 1st of September, 1933, appellant removed the phone from the Bell house. In November Bell contracted with one J. H. Stafford to wreck this house, and notice was given appellant about the 28th of November to disconnect and remove its wire from this house, which appellant did not do. Three days after this notice Stafford disconnected the wire, as appellant had it fastened to the house, and tied the loose end to a porch post in the house. In making this connection Stafford lowered the elevation of the wire across the street so that appellee's son, Eulon Hardy, about sixteen years old, riding in a truck under this wire, was struck by the wire and knocked from the truck. This suit was instituted by appellee to recover the damages suffered by him because of the injuries to his son received in this accident, pleading lost time, doctor bills, sanitarium bills, etc. He pleaded generally the facts as summarized above, and six specific acts of negligence against appellant; the fourth ground being that appellant was negligent "in permitting the wire across Shawnee Street to sag or lower to a point above the surface of the street that would not permit free and undisturbed passage of traffic over and along said street." Answering the questions submitted by the court's charge, the jury found the following facts: (1) Appellant had notice that "the house of Phineas Bell was about to be torn down," (2) appellant "failed to exercise ordinary care to remove the line from Phineas Bell's house after receiving notice that it was going to be torn down," (3) "which was negligence," and (4) "a proximate cause of the injuries inflicted upon Eulon Hardy." There was no question No. 5. By question 6 appellee's damages were assessed at the sum of $400. By the answers to questions 7, 8, and 9 the jury acquitted Eulon Hardy of contributory negligence. This appeal was regularly prosecuted from the judgment of the court entered in favor of appellee on the verdict of the jury.

Opinion.

The undisputed facts were that the wire, as attached by appellant to the Bell house, did not constitute a source of danger to the general public traveling on Shawnee Street; when Stafford, Bell's agent, tied the loose end of the wire to the house post after detaching it from the house, it constituted a source of danger to the general public using Shawnee street; appellant had no control over Stafford, and there was no privity between them; it did not have actual knowledge of the dangerous position of the wire across the street, as it was attached to the house post, nor was the length of time —about two hours — that the wire remained across the street after Stafford attached it to the post sufficient to give appellant constructive knowledge of its dangerous position. On these undisputed facts appellant, by its first five propositions, contends that it was entitled to an instructed verdict for the following reasons: (a) It was guilty of no act of negligence proximately causing the injuries to appellee's son; (b) the wire had not been maintained in a dangerous position across the street "a sufficient length of time for the company in the exercise of ordinary care to discover that fact," therefore "the evidence did not raise an issue of the negligent maintenance of the wire by the defendant"; (c) the act of negligence submitted to the jury was not raised by the pleadings; (d) "no causal connection was shown between the failure of the defendant to remove the wire from the house after notice that the house was about to be torn down and the injuries inflicted upon the injured party by coming in contact with said wire"; (e) the evidence was insufficient to raise the issue of proximate cause submitted to the jury. These contentions are all overruled.

After removing its telephone from the Bell house, appellant was a mere licensee in maintaining its wire attached to the house. The notice to remove the wire revoked this license, and, after a reasonable length of time from receipt of this notice, appellant became a trespasser on Bell's premises. The jury convicted appellant of negligence in failing to remove its wire from the Bell house after notice. This act of negligence changed the status of appellant from that of licensee to that of trespasser, and gave Bell the right, through his agent Stafford, to detach the wire from his house. The measure of Bell's duty to appellant in doing this is not before us; the issue before us is the responsibility of appellant for the negligent manner in which Bell's agent attached the wire to the house post.

In its relation to the public using Shawnee street, appellant was under the duty to maintain its wire across that street in a position that would not be a source of danger to the general public. However, that duty was not absolute; the rule being, quoting from 62 C.J. 59: "However, a telegraph or telephone company is not an insurer against injury and has no absolute duty so to use and maintain its wires along and over streets and public places as not to obstruct the use of the street by the public or to render it dangerous for use, its duty requiring it only to maintain its wires and poles in a reasonably safe condition for those using the highway along which the...